Benin Rubber Producer’s Cooperative Marketing Union Ltd Vs S.O. Ojo (1990)

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(d)……………..such dispute shall be referred to the registrar for decision. Without prejudice to……………..”|But section 51 (2) of the same law went on to provide as follows||”51 (2) The registrar shall on receipt of such reference-||(a) decide the dispute; or (b) subject to the provisions of any regulations, refer it for disposal to an arbitrator.”||Of relevance also are the provisions of sections 51 (4), 51(5) (a) and 51 (6) of the said law which provide thus –||”

51 (4) The registrar may of his own motion or on the application of a party to a reference revise any decision thereon by an arbitrator to whom it was referred.||51(5) (a) Any decision given by the registrar under sub-section (2) or under sub-section (4) shall, save as otherwise provided in sub-section (6), be final and shall not be called in question in any Court.

|(b)….|(c) …|(6) Any party aggrieved by any order of the registrar made under sub sections (4) and (5) may appeal to the appropriate authority within 21 days from the date of such order and the decision of the appropriate authority shall be final and conclusive.”|It is not in dispute that the appellant is a Co-operative Society, a Co-operative Marketing Union registered under section 7(1) of the Co-operative Societies Law, Cap. 45, Laws of Bendel State of Nigeria, 1976.

It is also clear, pursuant to section 51 (1) (c) of the said Law, that where a dispute arises between a society, its committee or any officer, agent or servant of the society, as in the present case, such dispute shall be referred to the Registrar of the Co-operative Society, in this case, the 1st defendant, for decision. Section 51(6) provides that the decision of the Registrar under sub-section (2) or sub-section (4) shall, save as otherwise provided in sub-section (6), be final and shall not be called to question in any Court. Section 51 (6) on the other hand, provides that any person aggrieved by any order of the Registrar may appeal to the appropriate authority, in this case the Commissioner for Trade and Industry, within 21 days from the date of such order and the decision of the appropriate authority shall be final and conclusive.

||I have given a close consideration to the submission of the learned Senior Advocate of Nigeria and, with profound respect, find it difficult to accept that this is a dispute in which it was mandatory that the same must firstly be referred to an arbitration before the respondent would be entitled to seek whatever reliefs that were open to him by action.

Section 51 (1) and (2) of the Co-operative Societies Law, Cap. 45 empower the Registrar to decide such disputes himself or, subject to the provisions of any regulations, refer them for disposal by an arbitrator. It seems to me plain that the decision to refer a dispute to an arbitrator is entirely that of the Registrar who, by the letters of the law, is under no compulsion to refer all disputes to an arbitrator for disposal.

|In the present case the registrar on the dispute being referred to him decided, as he was entitled to do, to look into the matter and decided the same himself. I entirely agree with the trial court that to the extent that the matter arising from the sale of the appellant’s vehicle amounted to a dispute, the law imposed no responsibility on the respondent to have the dispute determined firstly by an arbitrator as a condition precedent to seeking any remedies which may be open to him in respect of the vehicle by action.

I also endorse the view of the court below on the same issue when in effect, it affirmed the said opinion of the trial court. In my view, the appellant’s contention that failure by the respondent to have the dispute referred to an arbitrator before the present suit was filed is fatal to the action is clearly not backed up by the law and cannot be sustained.

Accordingly, the decision of this court in Eguamwense v. Amaghizemwen, supra, heavily relied upon by the appellant seems to me irrelevant and inapplicable to the facts of the present case.||There is next the further submission on behalf of the appellant that another condition precedent to the filing of the present action which the respondent failed to comply with was failure to wait for the findings of the Commissioner for Trade and Industry before he filed this action.

The evidence before the court is that the respondent duly appealed to the Commissioner as required by law. However, because the Commissioner advised him 10 wait for three months, he had no option but to go to court, having regard to the provisions of the Public Officers Protection: Law of the defunct Bendel State of Nigeria. Under that Law the respondent was only allowed three months within which to file his action against the 1st defendant, a public officer, from the date his cause of action arose.

On the evidence, the stage at which he was advised to wait for another three months before the appropriate authority would be disposed to look into his grievance virtually coincided with the dying days of the period of three months within which he was entitled to institute his action pursuant to the provisions of the said Public Officers Protection Law.||More importantly however, there are the provisions of sections 6(6) (b), 236 and 274 of the Constitution of the Federal Republic of Nigeria, 1979.

The combined effects of these section of the 1979 Constitution is, subject to the other provisions of the said Constitution, to confer unlimited jurisdiction on the High Court of a State and all existing laws and/or any provisions in a State Law which are not in conformity with the provisions of the Constitution or tend to derogate from the powers of such Courts shall, to the extent of such inconsistency, be void. State Law or any provision of a State Law which purports to oust the jurisdiction of the State High Court is void as being inconsistent with the Constitution of the Federal Republic of Nigeria, 1979. See Bronik Motors Ltd and Another v. Wema Bank Ltd(1983) 6SC 158; (1983) 1 SCNLR 296; Military Governor of Ondo State and Another v. Victor Adewunmi (1988) 3 NWLR (Pt. 82) 280. In my view, therefore, the provisions of sections 51 (1) (a), 51 (1) (b) and 51 (6) of the Co-operative Societies Law, Cap. 45, Laws of the former Bendel State of Nigeria, 1976 which are State enactments must be regarded as void in so far as they purport to limit or oust the jurisdiction of the High Courts as therein provided contrary to the express provisions of the 1979 Constitution. Issue 1 is therefore resolved against the appellant.

Issue 2 questions whether or not there was a valid counter-claim before the Court. If, infact, there was a competent counter-claim before the Court, the appellant’s complaint is that the same was not considered in whatever form and that he was not therefore given a fair hearing by the two Courts, below.

||In this regard, attention must be drawn to the provisions of Order 13 Rule 14 of the High Court (Civil Procedure) Rules of Bendel State, 1976 which state as follows||”Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counter-claim he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim,||and the particulars of such set off or counter-claim shall be given.”||